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INSUFFICIENT EVIDENCE

Judge allows DPP to withdraw Briton's drugs case

The two were caught up in international drugs trafficking web

In Summary

• Marrian and co-accused Roy Francis Mwanthi acquitted by Justice Luka Kimaru

•The fragility of the case emerged after the prosecution had called its witnesses to testify. The DPP withdrew the case for lack of evidence

Director of Public Prosecution Noordin Hajji during an interview with The Star.
Director of Public Prosecution Noordin Hajji during an interview with The Star.
Image: MONICAH MWANGI

The DPP yesterday admitted it lacked sufficient evidence to convict British suspect Jack Wolf Marrian for drugs trafficking.

The fragility of the case emerged after the prosecution had called its witnesses to testify. The DPP withdrew the case for lack of evidence.

Marrian and his co-accused Roy Francis Mwanthi were acquitted yesterday by Justice Luka Kimaru.

Marrian and Mwanthi were charged three years ago with drugs trafficking. The police alleged that in July 2016 at Kilindini Port in Mombasa, they trafficked 99,721.8 grammes of cocaine valued Sh598 million.

The prosecution had closed its case, but, in a twist of events, it asked to withdraw the case, saying it had no evidence against the two.

A lower court declined to allow the application and the DPP moved to the High Court to appeal the decision.

The DPP office said that in the course of the trial, they came across information which pointed to the fact that the accused were victims of circumstances, and, therefore, formed the opinion that it would not be in the public interest to continue with case.

“Marrian and Mwanthi were caught up in a web of international drug trafficking network," the DPP said.

In his ruling, the judge sided with DPP, ruling that he did not agree with the ruling by the lower court that the prosecution acted in abuse of due process of the court.

Justice Kimaru commended the DPP for acknowledging his mistake even after they had called all their witnesses.

“This court applauds the DPP ... He sought to do the right thing even at that later stage of the proceedings,” he said.

The judge ruled that the court erred by not allowing the application even after the DPP had given reasons for withdrawal.

It was clear to this court that the trial court erred when it failed to consider the merits of the DPP’s application. Article 157(6)(C) of the Constitution grants the DPP the power to discontinue any criminal proceedings at any stage before judgment is delivered
DPP Noordin Hajji

Kimaru also agreed with the prosecution’s argument that magistrate at the lower court exhibited an unusual interest in the case and that clouded him from appreciating the information placed before him by the DPP.

The DPP had argued that refusal to allow their application was wrong, erroneous, illegal, improper and irregular.

Kimaru acquitted the two and set aside the ruling by the lower court and substituted it, allowing the DPP to discontinue the criminal proceedings against Marrian and Mwanthi.

“Since the prosecution has closed its case, Marrian and Mwanthi are hereby acquitted of the charge that was brought against them. It is so ordered.” 

He ordered that the drugs that were seized by the police be destroyed in public under the supervision of the chief magistrate court, Milimani.